IN THE MATTER OF ESTATE OF JOSHUA MBIRA GITHETHU

1. Before this court for determination is the Notice of Preliminary Objection dated 13^th June, 2023 filed by the Respondents in this matter.
2. The Applicants opposed the Preliminary Objection through their Replying Affidavit dated 29^th June, 2023.
3. The matter was canvassed by way of written submissions.  The Respondents filed the written submissions dated 30^th June, 2023 whilst the Applicants relied upon their written submissions dated 17^th July, 2023.

BACKGROUND

1. This Succession Cause relates to the estate of the late JOSHUA MBIRA GITHEHU (hereinafter ‘the Deceased’) who died intestate on 23^rd May, 1971.  The Deceased who was a polygamous man was survived by seven (7) houses and several children as follows;-

1^ST HOUSE

1. EVANSON MBOGO MBIRA  - SON
2. NAOMI WANJIKU MBIRA  - DAUGHTER

2^ND HOUSE

1. RAHAB NJOKI WANENE   - DAUGHTER
2. JOHN MUKABI MBIRA   - SON
3. BRIDGLD NYAMBURA NGIGI  - DAUGHTER

3^RD HOUSE

1. JOSHIA KABOCHA MBIRA  - SON
2. WILFRED MUKOMA MBIRA  - SON
3. WILSON NGIGI MBIRA   - SON
4. NDUTA MBIRA     - DAUGHTER

4^TH HOUSE

1. GRACE GACHAMBI WANENE  - DAUGHTER
2. MARGARET WAKANYEKI MBIRA - DAUGHTER
3. KEZIAH MUTHONI MBIRA  - DAUGHTER

5^TH HOUSE

1. PETER WANENE MBIRA  - SON
2. JACKSON KIBIA MBIRA   - SON
3. SIMON NGIGI MBIRA   - SON
4. GRACE NYAKIO MBIRA   - DAUGHTER
5. MARY WANJIRU MBIRA  - DAUGHTER

6^TH HOUSE

1. LILIAN WAMBUI MBIRA  - WIFE
2. DAVID WANENE MBIRA  - SON
3. JACKSON WALYAKI MBIRA  - SON
4. GEORGE MUNYUA MBIRA  - SON
5. JOSEPH MUIRURI MBIRA  - SON
6. JAMES WAWERU MBIRA  - SON
7. STEPHEN RUTHI MBIRA  - SON
8. SIMON NGIGI MBIRA   - SON

7^TH HOUSE

1. LIZZIE WAIRIMU MBIRA  - WIFE
2. SAMUEL MAKIMEI MBIRA  - SON
3. SIMON NGIGI MBIRA ‘B’  - SON
4. JOHN KURIA MBIRA   - SON
5. FRANCIS WANENE MBIRA - SON
6. Following the demise of the Deceased Grant of letters of Administration Intestate was on 1^st March 1984 made to the Public Trustee.
7. Following a consent by all the beneficiaries regarding distribution of the estate the Grant was duly confirmed on 9^th February, 2000.  The consent on distribution was varied on 20^th February, 2007 after which a certificate of confirmed Grant was issued to the Public Trustee.
8. By way of summons dated 27^th September, 2011 the Administrator of the estate of MARY NDUTA MBIRIA who was a daughter of the Deceased) sought to have the share of the estate distributed to the 3^rd House divided equally amongst the four children of that house including their mother Mary Nduta.
9. The application was heard by Hon. Justice Aggrey Muchelule (as he then was) who vide a ruling delivered on 8^th April, 2020 dismissed the same with costs.
10. Thereafter the current Applicants STEPHEN MBIRIA NDUTA, JOSIAH WANENE NDUTA and IRENE MUGURE NDUTA (all children of Mary Nduta) filed a Notice of Motion dated 12^th April, 2023 seeking the following orders:-
11. SPENT
12. SPENT
13. THAT this Honourable Court be pleased to grant the Applicants the portion that they have lived on for over 20 years namely Parcel number Limiru/Kamirithu/

3150.

1. THAT this Honourable Court be pleased to issue a restraining order restraining the Respondents from issuing any further threats of evictions upon the Applicants or carrying out any evictions from the portion of Parcel Number Limuru/Kamirithu/3150 where the Applicants live.
2. THAT the Honourable Court be pleased to issue an order that the portions allocated/issued to the Applicants herein by the entire 3^rd house vide the agreement dated 30^th November 2013 be registered in the names of the Applicants.
3. THAT the costs of this application be in the case.”

10.  In response to the application the Respondents filed the Notice of

      Preliminary Objection dated 13^th June, 2023, which Preliminary

      Objection was premised upon the following grounds:-

    “THAT the Applicants Application dated 12^th April, 2023 is  

     Res Judicata”

ANALYSIS AND DETERMINATION

11. I have carefully considered the Preliminary Objection filed by the

      Objectors as well as the written submissions filed by both parties.

12. The definition of what constitutes a Preliminary Objection was given in

      the case of MUKISA BISCUIT MANUFACTURING COMPANY LTD

      -VS- WEST END DISTROBUTORS LTD [1969] E.A in which the court

       stated as follows;

“A Preliminary Objection consists of a point of law which

               has been pleaded or which arises by clear implication out

              of pleadings which if argued as a Preliminary point may

              dispose the suit.  Examples are an objection of the

              jurisdiction of the court, or a place of limitation or a

              submission that the parties are bound by the contract

              giving rise to the suit to refer the dispute to arbitration

              ………  A Preliminary Objection is in the nature of what is

              used to be a demurrer.  

              It raises a pure point of law, which is argued on the

             assumption that all facts pleaded by the opposite side are

             correct.  It cannot be raised if any fact is to be ascertained

             or if what is sought is the exercise of judicial discretion.”

12.  In AVIATION & ALLIED WORKERS UNION KENYA –VS- KENYA

       AIRWAYS LIMITED & 3 OTHERS [2015] eKLR, the Supreme Court

       of Kenya stated that

“a Preliminary Objection may only be raised on a “pure

            question of law”

13.  To discern such a point of law, the court has to be satisfied that there

       is no proper contest as to the facts.  The facts are deemed agreed as

       they are prima facie presented in the pleadings on record”

14.   Therefore in order for a Preliminary Objection to succeed, the following

        tests must be satisfied;-

1. The Preliminary Objection should raise a pure point of law.
2. The Preliminary Objection must be argued on the

          assumption that all the facts pleaded are correct.

1. The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.
2. A valid Preliminary Objection ought if successful

dispose of the entire suit.

15. Therefore a genuine and proper Preliminary Objection can only raise

      pure points of law and must not itself derive its foundation on facts or

      information which stands to be tested by normal rules of evidence.

16.  The Respondents submit that in view of the Ruling delivered by Hon.

Justice Muchelule (as he then was) on 8^th April, 2020, the Notice

       of Motion filed by the Respondents dated 12^th April, 2023 is Res

       Judicata and is therefore for striking out.

17.  The substantive law on res judicata is found in Section 7 of the Civil

Procedure Act Cap 21 which provides that:

“No court shall try any suit or issue in which the matter directly and substantially in issue is a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

18.  Black’s law Dictionary 10^th Edition defines “res judicata” as “An

       issue that has been definitely settled by judicial decision…. 

       The three essentials are (1) an earlier decision on the issue, (2)

       a final judgment on the merits and (3) the involvement of same

       parties, or parties in privity with the original parties…..”

19.  In the Case of Christopher vs Salama Beach (2017) eKLR, the

      court clearly stated the ingredients to be satisfied when determining res

      judicata thus;

1. The suit or issue was directly and substantially in issue in the former suit.
2. Former suit between same parties or parties under whom they or

any of them claim.

       (c)     Those parties are litigating under the same title

      (d)    The issue was heard and finally determined.

      (e)    The court was competent to try the subsequent suit in

               which the suit is raised.”

20. In the case of WILLIAM KOROSS -VS- HEZEKIA KIPTOO KOMEN

& Others [2016] eKLR the Court of Appeal stated as follows:-

“The philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end.  It is a rule to counter the all-too-human propensity to keep trying until something gives.  It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs.  A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.

Speaking for the bench on the principles that underlie res judicata,Y.V Chandrachud J in the Indian Supreme Court case of LAL CHAND Vs. RADHA KISHAN, AIR 1977 SC 789 stated and we agree;

“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end.  The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.”

21.  I have carefully perused the two applications in issue.  In the application

      dated 27^th September, 2011 the Applicants sought to have the share

      of the estate allocated to the 3^rd House distributed equally amongst the

      beneficiaries of Mary Nduta Mbiria.

22.  In dismissing that application the court in the Ruling delivered on 8^th

       April, 2020, stated that the parties had entered into a consent

       regarding distribution of the estate.  That this consent formed the basis

       of the certificate of confirmed Grant which was issued by the court

       on 9^th February, 2000.

23.  In that ruling of 8^th April, 2020 the Hon. Judge went on to observe

       that

“An order of judgment that has been entered into by the consent of the parties can only be set aside or varied by consent.  It is trite that a consent order or judgment has contractual effect and can only be set aside on the grounds that would justify the setting aside of a contract, or if certain conditions remain to be fulfilled which are not carried out…………

The Grounds of setting aside are where the consent orders or Judgment was obtained by fraud or collision or by an agreement contrary to policy of the court or if the consent was given without sufficient material facts or in misapprehension or in ignorance of material facts or in general for a reason which would enable the court to set aside an agreement”

24.  The application dated 12^th April, 2023 involves the same

       parties and seeks orders in respect of the parcel of land known as

LIMURU/KAMIRITHU/3150 (hereinafter referred to as ‘the

       Limuru Property’)

25.  I have perused the certificate of confirmed Grant dated 9^th February,

     2000 and rectified on 20^th February, 2007.  The mode of distribution

     contained therein was reached by consent of all the beneficiaries.  The 

     parcel of land known as Limuru/Kamirithu/3150 is not listed as one

    of the assets of the estate subject to distribution.

26.  I have also perused the Affidavit sworn in support of the Petition for

      Grant of letters of Administration Intestate dated 24^th February, 1984

      once again this plot 3150 is not listed as one of the assets

      belonging to the Deceased.

27.  In the circumstances the application dated 12^th April, 2023 cannot be

      said to be Res Judicata as the same does not relate to the distribution

      of estate property.

28.  However, having said that I do find that the application dated 12^th

       April, 2023 which deals with non-estate property cannot be prosecuted

      under this succession cause. If the Applicants wish to protect their

      interest in Plot 3150 Limuru then the correct forum for them to file

      their claim is in the Environmental and Land Court which under

      Article 162(2)(b) of the Constitution of Kenya 2010 is the only Court

      mandated to determine issues of ownership, use and occupation of land.

29.  I therefore find that the issues raised in the Notice of Motion dated 12^th

April, 2013 are Res Judicata.  As such the said application is hereby

      struck out.

30.  This being a family matter each side will bear their own costs.

Dated in Nyeri this 17^th day of May, 2024.

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